The Supreme Court today refused to order Vice President Cheney to release secret records of his 2001 energy task force, but prolonged a legal fight over the issue by sending the case back to a lower court.
By a vote of 7 to 2, the court voted to require the U.S. Court of Appeals for the District of Columbia to reconsider its ruling in the case, which effectively allowed two private groups to use a federal open-meetings law to obtain records of the task force's deliberations on a national energy policy.
A lower court had granted the groups access to some of the task force's records to try to prove their claim that energy industry lobbyists and executives of such companies as Enron Corp. were de facto members of the task force and played a major role in drafting the Bush administration's energy strategy.
The administration argued that deliberations among the president's advisers needed to be kept confidential to ensure candor and that requiring disclosure of the records would violate the constitutional separation of powers.
The White House indicated it was pleased with the decision, which appeared likely to postpone a resolution of the issue until after the November elections.
"We believe the president should be able to receive candid and unvarnished advice from his staff and advisers," White House spokesman Scott McClellan told reporters. "It's an important principle."
A spokesman for the campaign of Democratic presidential candidate John F. Kerry said after the Supreme Court's ruling, "The Nixon legacy of secrecy is alive and well in the Bush White House." In a statement, the spokesman, Phil Singer, said that in any case, Americans should not have to rely on court orders to learn which lobbyists are writing White House policies.
"The president should come clean and make this information public," Singer said. "George Bush and Dick Cheney have forgotten that the White House belongs to America, not Enron, and they owe it to the public to disclose this information."
Tom Fitton, the president of Judicial Watch, one of the two groups seeking the energy task force's records, disputed the notion that today's ruling represents a victory for the Bush administration. He said there would have been a delay in obtaining the records even if the court had ruled in Judicial Watch's favor and that remanding the case to the appeals court would not help the administration in the end.
"It virtually guarantees that the dispute will be kicked into the fall election season, and the administraiton will be arguing to the court that meetings with [former Enron executive] Ken Lay ought not to be subjected to any scrutiny at all," Fitton said.
Today's decision represents "the sort of normal deference that the Supreme Court often gives the Executive Branch," he said. "We're confident that the appeals court . . . will rule in our favor, that certain documents will have to be made available to us."
Writing for the majority in the case, Justice Anthony M. Kennedy said that "all courts should be mindful of the burdens imposed on the Executive Branch in any future proceedings." He added, "Special considerations applicable to the president and vice president suggest that the courts should be sensitive to requests by the government" in such appeals.
Justices Ruth Bader Ginsburg and David H. Souter dissented, saying that the appeals court judge in the case should be allowed to consider which records to release. They said they would affirm the appeals court's judgment and were confident that the release of records in the case would be kept "within appropriate limits."
Justices Clarence Thomas and Antonin Scalia voted with the majority, but issued a separate opinion arguing that the U.S. District Court that initially heard the case "clearly exceeded its authority" and that the appeals court judgment should be reversed.
The case had been largely overshadowed by a dispute over whether Scalia should recuse himself on grounds that his impartiality was called into question by a duck-hunting trip with Cheney in January on an oil-services entrepreneur's land in Louisiana.
Scalia issued an unusual memo defending the trip and arguing that his impartiality was not an issue because, while Cheney is a friend, the case did not expose the vice president to any criminal or civil punishment.
"If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined," Scalia wrote in the memo.
The case challenging the president's National Energy Policy Development Group, chaired by Cheney, was brought by two odd political bedfellows: the Sierra Club, a liberal environmental group, and Judicial Watch, a conservative anti-corruption organization. They charged that records of the energy task force must be disclosed under a 1972 law, the Federal Advisory Committee Act, which governs public-private advisory commissions. The law requires that advisory committees conduct their business publicly unless all the members are government officials.
The Sierra Club and Judicial Watch argued that officials of Enron and other private companies were intimately involved in formulating the task force's recommendations. To prove that the task force, which operated from January to September 2001, was actually a public-private body, the groups obtained a "discovery" order in 2002 from the U.S. District Court for the District of Columbia that granted access to the task force's documents and testimony.
Cheney, represented by Solicitor General Theodore B. Olson, fought that order, asking the appeals court to issue a "writ of mandamus" to modify or dissolve the discovery order. The appeals court declined to issue such a writ.
The Supreme Court today did not find that the appeals court abused its discretion by failing to issue the writ, but had "prematurely terminated its inquiry after the government refused to assert privilege and did so without even reaching the weighty separation-of-powers objections raised in the case. . . ."
Staff writer Charles Lane contributed to this report.